B-134891, FEB. 13, 1958

B-134891: Feb 13, 1958

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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26. THE RECORD SHOWS THAT YOU WERE AWARDED A SALES CONTRACT FOR ITEM 14. " AND THAT AFTER RECEIPT OF THE GOGGLES YOU REQUESTED THAT YOU BE PERMITTED TO RETURN 77 PAIRS WHICH YOU ALLEGE WERE USED RATHER THAN UNUSED AS DESCRIBED IN THE INVITATION. YOUR CLAIM IS BASED ON THE CONTENTION THAT BY REASON OF THE GOVERNMENT'S MISDESCRIPTION YOU SHOULD RECEIVE A REFUND FOR THEIR PURCHASE PRICE. - BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE.

B-134891, FEB. 13, 1958

TO THE OUTLET STORES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26, 1957, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 14, 1957, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE PURCHASE PRICE OF 77 PAIRS OF GOGGLES PURCHASED FROM THE DEPARTMENT OF THE ARMY, JEFFERSONVILLE, INDIANA, UNDER ITEM 14 OF INVITATION TO BID NO. 12-036-S-57-16.

THE RECORD SHOWS THAT YOU WERE AWARDED A SALES CONTRACT FOR ITEM 14,DESCRIBED AS 433 PAIRS OF ,GOGGLE, FLYING TYPE, POLAROID TYPE B-8, (UNUSED)," AND THAT AFTER RECEIPT OF THE GOGGLES YOU REQUESTED THAT YOU BE PERMITTED TO RETURN 77 PAIRS WHICH YOU ALLEGE WERE USED RATHER THAN UNUSED AS DESCRIBED IN THE INVITATION. YOUR CLAIM IS BASED ON THE CONTENTION THAT BY REASON OF THE GOVERNMENT'S MISDESCRIPTION YOU SHOULD RECEIVE A REFUND FOR THEIR PURCHASE PRICE.

THE GENERAL SALE TERMS AND CONDITIONS MADE A PART OF THE CONTRACT PROVIDE IN PARAGRAPHS 1 AND 2 AS FOLLOWS:

"1. INSPECTION.--- BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE. NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

"2. CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND ,WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD, THEN "WHERE IS" MEANS F.O.B. CONVEYANCE AT THE POINT SPECIFIED IN THE INVITATION. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A SALE BY SAMPLE.'

HAD THIS BEEN A SALE BY SAMPLE, THEN THERE WOULD HAVE ARISEN AN IMPLIED WARRANTY THAT ALL OF THE ITEMS LISTED IN THE INVITATION WOULD HAVE CONFORMED WITH THE SAMPLES WHICH HAD BEEN ON DISPLAY. HOWEVER, IN THE INSTANT CASE, THE ABOVE QUOTED LANGUAGE, WHICH SPECIFICALLY PROVIDES THAT NO WARRANTIES OR GUARANTIES ARE MADE BY THE GOVERNMENT, CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY, AND, THEREFORE, NO SUCH WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424.

IT IS APPARENT, THEREFORE, THAT YOU HAD ACTUAL NOTICE OF THE FACT THAT THE VENDOR'S DESCRIPTION OF THE PROPERTY WAS NO MORE THAN A MERE STATEMENT OF ITS OPINION AND UNDERSTANDING AS TO THE CHARACTER AND CONDITION OF THE PROPERTY OF SALE, AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE DISPOSAL OFFICER OR HIS AGENTS ACTED OTHER THAN IN GOOD FAITH IN DESCRIBING THE GOGGLES.

IN YOUR LETTER OF DECEMBER 26, 1957, YOU ALLEGE THAT YOU HAD A PERSON INSPECT SEVERAL PAIRS OF THE GOGGLES. IN VIEW OF THE EXPLICIT TERMS AND CONDITIONS UNDER WHICH THE PROPERTY WAS BEING OFFERED BY THE GOVERNMENT, IT WOULD HAVE BEEN TO YOUR DISTINCT ADVANTAGE FOR YOUR AGENT EITHER TO HAVE INSISTED UPON HIS UNEQUIVOCAL RIGHT TO HAVE INSPECTED EACH ITEM, OR, IF THAT WAS NOT PRACTICABLE, FOR YOU TO HAVE REFUSED TO SUBMIT A BID UNDER THE TERMS UPON WHICH THE GOGGLES WERE ADVERTISED FOR SALE.

WHILE THE DESCRIPTION OF THE GOGGLES MAY NOT HAVE BEEN ACCURATE, SUCH DESCRIPTION APPEARS TO HAVE BEEN PREPARED IN GOOD FAITH AND IN THE CIRCUMSTANCES, YOU ARE NOT ENTITLED TO ANY ADJUSTMENT IN THE CONTRACT PRICE. 36 COMP. GEN. 612. THE FACTS IN THIS CASE ARE SIMILAR, IN ALL MATERIAL RESPECTS, TO THOSE CONSIDERED IN TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151, WHERE THE PLAINTIFF WAS DENIED RECOVERY BECAUSE A CERTAIN NUMBER OF SURPLUS SADDLES DESCRIBED AS UNUSED WERE LATER FOUND TO HAVE BEEN USED AND RECONDITIONED. ASIDE FROM THE FOREGOING, THE CONTRACTING OFFICER HAS REPORTED THAT HE HAS EXAMINED A PAIR OF GOGGLES RETURNED BY YOU AND THAT IT WAS IMPOSSIBLE TO DETERMINE WHETHER THEY WERE IN FACT "UNUSED" BUT "SHELF WORN" AND THUS IN A SOMEWHAT DETERIORATED CONDITION, OR WHETHER THEY HAD ACTUALLY BEEN USED.